Why has the Supreme Court kept the Puigdemont case?

BarcelonaThe ruling of the Court of Justice of the European Union (CJEU) on Thursday regarding the amnesty has once again put the focus on who and how our representatives are tried. Once the Constitutional Court (TC) determines its position, the final decision on the application of the law to the leaders of the process will fall to the Supreme Court (TS), given that they were or should have been tried by this body. But why go directly to Madrid?

The answer lies in the privilege of jurisdiction, a parliamentary prerogative that is minority in most European Western democracies, but deeply rooted in the Spanish state. According to Damià del Clot, professor of constitutional law at the Autonomous University of Barcelona (UAB), privileges of jurisdiction "are a series of advantages that parliamentarians have to be able to exercise with complete freedom." Their origin, points out fellow UAB constitutional law professor Joan Marsal, dates back to the 1978 Constitution, responding to "a certain distrust of the functioning of the entire judicial apparatus" of the time and to prevent local judicial bodies from opening "processes for political trifles" against elected officials.

However, experts consulted by ARA point out that the figure has undergone an exaggerated expansion. "This is replicated in the statutes of autonomy and then the organic law of the judiciary extends it to judges and prosecutors," recalls Marsal. Del Clot agrees, and emphasizes that "Spain has a problem, it has many privileged individuals," and warns that this figure today "has lost its meaning a bit."

Currently, Article 71.3 of the Spanish Constitution (CE) establishes that in cases against deputies and senators, the criminal chamber of the High Court will be competent. In the Catalan case, Article 57.2 of the Statute establishes that the High Court of Justice of Catalonia (TSJC) is competent.

More shadows than light

Constitutionalists warn that this situation, conceived as a privilege, actually hides great disadvantages. The first, evidenced in the trial of the Procés, is the violation of the right to the ordinary judge predetermined by law (article 24.2 CE). As Del Clot says, if a crime is committed in a territory, "the judge of the territory must be the one to judge it, not the Audiencia Nacional or the TS." But the Supreme Court took on the Procés case because "it was argued that the act went beyond the autonomous community and affected the entire State," says Del Clot. Likewise, Marsal recalls that "the initial crime with which he was charged was rebellion and they understood that the entire state structure was involved," which is why it ended up in the hands of the Supreme Court.

The second major grievance is the loss of double instance. Being judged in the first instance by the higher instance means you have nowhere to appeal. Marsal clarifies that the TC "is not a second instance, but the last instance of constitutional protection" before going to Europe. In the case of regional governments and deputies judged by the TSJC, "there is indeed the possibility of going to the criminal chamber of the Supreme Court." 

To all this, we must add the proximity between the accused and the judicial elite. Del Clot denounces that in the second chamber of the TS "one does not arrive through merit or ability, one arrives through political favors," which turns immunity into a "firewall" that is useless "when you are a politician from the opposing flank." For politicians from Podem or independentists, he concludes, "it has been detrimental." All this has led communities such as Cantabria, Murcia, the Canary Islands, the Balearic Islands, La Rioja, and Aragon to have already eliminated the immunities from their statutes.

The fall of immunity

And what happens if the privileged status is lost? The Supreme Court, backed by the Constitutional Court in rulings such as those of the leaders of the 'procés' Josep Rull or Carme Forcadell, established in a non-jurisdictional plenary agreement in 2014 that if a firm indictment had already been issued, the high court retained jurisdiction of the case despite the resignation from office.

This doctrine clashes head-on with the view of experts such as constitutional law professor Javier Pérez Royo, who labels it as "manifest unconstitutionality." "The moment they cease to be privileged, jurisdiction ceases to be the Supreme Court's," states Pérez Royo in conversation with l'ARA, and emphasizes that "for this not to be the case, a review of the Constitution would have to be carried out and Article 71.3 would have to be complemented." Using the case of former minister Ábalos as an example, he states that upon losing his seat, the case and the satellite defendants (like Koldo), who also come to be tried by the high court, should be transferred directly to the ordinary judge. "In no case could the Supreme Court have issued a sentence," concludes the professor.